Agency workers

Agency workers enter into engagement with an employment agency and are sent by that agency to work for a third party – an end user.

Is the agency worker an employee of (a) the agency, or (b) of the end user?

(a) The worker- agency relationship

In Construction Industry Training Board v. Labour Force Ltd [1] it was held that unskilled or building workers hired by employment agencies were not in a relationship of employment with the agency. The end-user paid the wages to the agency, and had the right to control the men as to what to do, and to require the agency to remove a man at three days notice (or in the case of misbehaviour, forthwith). The court considered it decisive against the identification of an employment relationship with the agency that no control was exercised by the agency over the workers.

This approach was followed in Ireland. In Brightwater Selection v. Minister for Social and Family Affairs [2] a Social welfare appeals officer held that a worker sent by an agency to UCD to work in the administration section worked under the control of the agency: ‘the requirement to notify them of any changes in relation to responsibility, hours worked, pay, grievances… to produce a time sheet’. However, the High Court held that these minimal administrative obligations were not equivalent to control. The High Court held that in determining whether control exists, the alleged employer must not only have the right to tell the individual what work to do, but also to dictate the manner in which this work was to be done’. There was no control in this sense and the worker was not an employee of the agency.

However, in very special circumstances, an agency worker can be the employee of the agency.

In 2008 it was recognised that sometimes the involvement of the agency is so close, integrated and ‘hands-on’, that the agency can be